Iraqi Tribes Sharpen Legal Tools to Root Out ISIS

As the Islamic State’s self-declared caliphate crumbles in Iraq, tribal leaders are taking unprecedented steps to avert a new cycle of violence that could follow the extremist group’s defeat. In a pact reached earlier this month, more than 100 sheikhs of tribes in and around the city of Hawija made a path-breaking pledge to forgo traditional justice in dealing with ISIS fighters and supporters. Instead, they agreed to embrace Iraq’s formal legal system.

The detailed agreement, which spells out amendments to tribal law and the tribes’ pledges to cooperate with police and courts, follows a more general statement of principles on respecting state-led rule of law reached in January. Over the following six months, the number of tribal leaders joining the pact doubled as the territory held by ISIS in Iraq shrank. Efforts to liberate Hawija and its surroundings in Kirkuk province are expected to begin once Iraqi forces oust the extremists from Mosul, the country’s second-largest city.

The pact aims to avert vengeance-based violence likely to follow the defeat of ISIS if left to the mechanisms of tribal law alone, said Ahmed Twaij, a senior program specialist with the U.S. Institute of Peace in Iraq. The accord was the result of a series of dialogues and consultations organized and led by two Iraqi groups, Sanad for Peacebuilding and the Network of Iraqi Facilitators (NIF), both supported by USIP and long-term strategic partners of the institute.

This ultimately promotes both stabilization in Kirkuk in the short-term … [and strengthens] state institutions.

USIP Program Manager Osama Gharizi

Concerns about the destabilizing effects of tribal retaliation against presumed ex-ISIS fighters, their families and the group’s alleged supporters led the sheikhs to cede some traditional authority and sign onto the declaration of support for the rule of law, Twaij said.

The centuries-old, unwritten codes of tribal justice govern disputes ranging from commercial to criminal offenses. They impose penalties and determine who to settle the dispute with “blood money”—compensation for victims—among tribal members and between tribes. Tribes have the means to enforce judicial rulings through tribal militias that have assumed a local security role in the face of weakened government institutions. The systems often operate on the basis of collective punishment, so offenses by an individual often must be compensated by some designated family or group.

Vigilante Justice

“Many tribes have ISIS members,” Twaij said. “They all would be affected by revenge attacks and the reaction to them. They are already seeing the outcomes of vigilantism. Consequently, they’re willing to give up some power, and more and more tribes joined in as word of the agreement spread.”

The principles of the pact not only enhance cohesion among tribal groups but also move tribal processes closer to the state, said Osama Gharizi, USIP’s Middle East program manager.

“This ultimately promotes both stabilization in Kirkuk in the short-term, particularly once Hawija is liberated, and the longer process of strengthening state institutions,” he said.

In the process of negotiating the accord, USIP and its civil society partners also worked with authorities in Baghdad, including the National Reconciliation Committee of Prime Minister Haider al-Abadi’s office. The effort, which is one of a number of USIP-connected peacebuilding initiatives in Iraq, began when the deputy governor of Kirkuk Province asked USIP how to ensure sustainable peace after the liberation of Hawija.

Hawija was a crucible of sorts for ISIS, which claims to represent Sunni Islam. With a population of 275,559 in 2012, the city lies in the almost entirely Sunni region of southwestern Kirkuk, an area that U.S. and Iraqi forces never fully controlled after the U.S. invasion in 2003.

Subsequently, as the Sunni community felt marginalized by policies of then-Prime Minister Nouri al-Maliki’s government, tribal identity strengthened, rule of law deteriorated, and tribal law and practices filled the gap, according to USIP Middle East Director Sarhang Hamasaeed.

The Roots of ISIS

The region’s anger at the government exploded in April 2013, when a violent crackdown on disaffected Sunni protesters left as many as 200 civilians dead and at least 150 injured.

While ISIS has roots in Al-Qaeda in Iraq, an earlier terrorist organization, its surge in 2014 was fueled by incidents like the Hawija massacre and by government policies that Sunnis say drove some to support the insurgents, according to Hamasaeed. By June 2014, ISIS had seized Hawija and much of southern Kirkuk. Some tribal leaders and members sided with the extremists, some were coerced into support and others fled to organize opposition.

The tribal accord is designed to end the violence once and for all and to move the region forward through peaceful co-existence and stability, according to a Sanad statement on June 10.

“It is important to continue these efforts,” said Sheikh Ra’ad Sami Al A’asi, the leader of the Al A’asi tribe. “They helped bring the community together to support the rule of law, prevent extremism and promote peace and nonviolence,” he said.

Key features of the pact include:

Ending the use of women as a means of reparation or compensation to resolve any conflict resolved under tribal law.

Amending tribal laws to support security efforts, social cohesion and promotion of the formal justice system.

Barring collective punishment and allowing police and judicial authorities to identify individuals linked to ISIS and set appropriate punishments.

Agreeing that all tribes, without exception, will adopt a single tribal law pertaining to terrorism offenses.

Prohibiting the expulsion from the community of anyone who has not been convicted in a court of law.

The declaration also calls for forming a committee of security and administrative officials and tribal leaders, which will not only investigate terrorism but also manage local conflicts through dialogue and by promoting a culture of moderation. Regional committees of tribal leaders and clerics should also be established to organize reconciliation among tribesmen and promote forgiveness and tolerance, according to the agreement.

The tribal leaders concluded their pact with recommendations that go beyond the immediate aftermath of ISIS to address some of the root causes of extremism. They set goals that include literacy campaigns, long-term programs that counter extremist thought, empowering youth and women, and accelerating reconstruction, service improvement and infrastructure development.

“While we have the momentum, we have to continue to move ahead,” said Twaij. “There’s a snowball effect among the tribes, and the National Reconciliation Committee has asked us to replicate this work across of other regions."

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